The Supreme Court of Appeal this week delivered a landmark judgment that sealed the Mail & Guardian‘s victory in an epic five-year legal battle with the public protector.
Judge Robert Nugent on Wednesday dismissed the public protector’s appeal against a 2009 ruling by the Gauteng North High Court setting aside a controversial report on the Oilgate scandal, first exposed by the M&G in a series of articles in 2005.
Over several months, M&G journalists Sam Sole and Stefaans Brümmer uncovered the labyrinthine relationship between the ANC, the state oil company PetroSA and the “empowerment” oil trader, Imvume. The exposé indicated that Imvume had funnelled R11-million in taxpayers’ money to the ruling party before the 2004 election.
The Johannesburg High Court, later renamed the Gauteng South High Court, gagged an M&G follow-up, forcing a recall of the paper. Freedom of expression activists were outraged, comparing the decision with apartheid-era attempts to muzzle the media.
However, the Oilgate scandal gathered momentum. In June 2005 the matter was raised for the first time in the National Assembly. By late July opposition parties had lodged three requests with the public protector, Lawrence Mushwana, calling for a thorough investigation.
Many were surprised by the speed with which Mushwana responded. However, the media community condemned his report, which dismissed the M&G‘s reporting as “unsubstantiated suggestions and unjustified speculation”. The M&G hit back, describing the report as a “whitewash”.
In January 2006 the paper filed an application in the high court challenging Mushwana’s report under the Promotion of Administrative Justice Act. The legal process turned out to be a lengthy one (see the accompanying timeline). In 2009 Judge Ntsikelelo Poswa decided in favour of the newspaper, but the public protector responded by taking the decision to the appeal court.
In late 2009 Thuli Madonsela replaced Lawrence Mushwana as public protector. Mushwana, who moved on to head the South African Human Rights Commission, walked away with a golden handshake said to have been worth R7-million. In this week’s 58-page judgment the appeal court dismissed the public protector’s appeal. Stopping short of ordering a new investigation, it described the constitutional role and responsibilities of the public protector.
Nugent said that, although the court could not tell the protector what to investigate, it could offer advice on how investigations should be conducted. “An investigation that is not conducted with an open and inquiring mind is no investigation at all,” Nugent said.
The appeal court judges found that Mushwana’s report was neither “open” nor “inquiring”, but superficial, narrow and hastily written. Nugent highlighted a litany of questions the protector should have asked but had not and which should have occurred to “even a mildly inquiring mind”. One in particular, concerning former PetroSA chief executive Sipho Mkhize, “[jumped] out like a jack in the box”.
The court described Mushwana’s overall passivity as “startling” and “astonishing”, while the investigation itself was “sparse” and “scant”. “It is the hallmark of this investigation that responses were sought from people in high office and recited without question as if they were fact. An investigation that is conducted in that state of mind might just as well not be conducted at all,” the Âjudgment said.
It also strongly criticised MushÂwana’s insistence that the M&G should reveal its sources, noting his “disdain” for the newspaper’s ethical stance and his “taunting challenges”. This was misconceived, NugÂent said, adding: “The fact that the source of information is not disclosed does not mean that the information is untrue.”
Nugent also commented on the quality of the M&G‘s reporting. Referring to its documentary evidence, he said: “I think I have already demonstrated that the substance of each of the articles was constructed on an ample base.”
The M&G‘s deputy editor, Rapule Tabane, welcomed Wednesday’s judgment, saying it vindicated the paper’s Oilgate exposé and “more importantly” demonstrated the shortcomings of the public protector’s office in the past.
Tabane said that he was unfazed by the appeal court’s decision not to call for a new investigation into the Oilgate affair. It was sufficient for the judgment to state that the public protector “must be left to determine what is required”. “We believe this can only mean that the investigation has to be started afresh,” said Tabane.